|
...continued
d.
Article 8 - Unavailability of Legal Aid for Constitutional
Motions
50.
The Petitioners claim that the State has violated Mr. Jacob's
right under Article 8 of the Convention, because legal aid is not
available to enable him to pursue a Constitutional Motion in the
domestic courts in Grenada. The Petitioners maintain that Mr. Jacob is
indigent and therefore lack the private resources to bring a
Constitutional Motion to challenge violations of his Constitutional
rights. The Petitioners also contend that there are a dearth of
Grenadian lawyers who are willing to represent Mr. Jacob on a pro bono
basis. The Petitioners
therefore claim that the failure of the State to provide legal aid for
Mr. Jacob to pursue a Constitutional Motion denies Mr. Jacob an
effective remedy, which includes access to the Courts in fact as well
as in law. In support of this contention, the Petitioners rely upon
the decisions of the European Court of Human Rights in the cases Golder
v. UK,
[32]
and Airey v. Ireland,
[33]
in which the European Court held that Article 6 of the
European Convention
[34]
imposed positive obligations on the States concerned to
provide legal aid in the interests of justice.
51.
The Petitioners argue that a similar interpretation of Article
8 of the American Convention is appropriate. In particular, they argue
that the Constitutional Motion in the circumstances of Mr. Jacob's
case should be considered criminal proceedings for the purposes of
Article 8(2) of the Convention, because they arise from earlier
criminal proceedings, and might serve to quash his capital sentence.
Consequently, the Petitioners argue that Article 8(2) of the
Convention compels the State to provide legal aid to Mr. Jacob to
pursue a Constitutional Motion relating to the criminal proceedings
against him. The Petitioners also argue that the fact that Mr. Jacob
will be executed if his Constitutional challenge fails, also weighs in
favor of this interpretation. B. Position of the
State
52.
To date, the State has not responded to any of the Commission’s
communications to it dated June 9, 1999 and September 25, 2000 nor has
it presented any information to the Commission pertaining to the
admissibility and merits of the petition, or the Commission’s offer
to facilitate a friendly settlement between the parties.
IV. ANALYSIS
A. Competence
of the Commission
53.
The Convention entered into force for the State of Grenada on
July 18, 1978 upon deposit of its instrument of Ratification. The
Petitioners allege violations of Articles 4, 5, 7, 8 and 24 of the
Convention with respect to acts or omissions which transpired in
Grenada after the Convention came into effect for Grenada. In
addition, the petition in this case was lodged by the Petitioners,
Solicitors from London, United Kingdom, on behalf of Benedict Jacob, a
national of the State of Grenada. Consequently, the Commission has
jurisdiction ratione temporis, ratione materiae, and ratione personae to consider
the claims in this case.
B. Other Grounds of Admissibility
1.
Exhaustion of Domestic Remedies
54.
The Petitioners argue that Mr. Jacob has exhausted the domestic
remedies of Grenada upon the dismissal of his appeal against his
conviction and sentence by the Eastern Caribbean Court of Appeal in
Grenada on December 8, 1997. The Petitioners indicate that Mr. Jacob
petitioned the Judicial Committee of the Privy Council for Special
Leave to Appeal as a Poor Person, and that the Privy Council dismissed
his petition on December 16, 1998. The State has not provided the
Commission with observations concerning the admissibility, including
the exhaustion of domestic remedies or merits of the petition,
notwithstanding the Commission's communications to the State dated
June 9, 1999 and September 25, 2000. Based upon the record before it,
and in accordance with the jurisprudence of the Inter-American System
including the Commission's previous decisions,
[35]
the Commission finds that the State tacitly waived its
right to object to the admissibility of the Petitioners' petition
based upon the exhaustion of domestic remedies rule. Therefore, the
Commission finds that this petition is admissible under Article
46(1)(a) of the Convention.
2.
Timeliness of the Petition
55. The Petitioners indicate that this petition was timely filed under Article 46(1)(b) of the Convention. The Petitioners contend that Mr. Jacob was convicted of murder and sentenced to death on June 30, 1997, he appealed his conviction and sentence to the Eastern Caribbean Court of Appeal of Grenada, and his appeal was dismissed by the Court on December 8, 1997. The Petitioners indicate that Mr. Jacob petitioned the Judicial Committee of the Privy Council for Special Leave to Appeal as a Poor Person, and that the Privy Council dismissed his petition on December 16, 1998. The petition was filed before the Commission on May 21, 1999. The State has not contested the admissibility of the petition on the ground of timeliness or otherwise demonstrated that the petition was not timely filed. [36] Therefore, the Commission finds in accordance with its previous decisions [37] that this petition is admissible under Article 46(1)(b) of the American Convention.
3.
Duplication of Procedures
56. The Petitioners have indicated that the subject of Mr. Jacob's petition has not been submitted for examination under any other procedure of international investigation. The State has not contested the issue of duplication of procedures. Therefore, the Commission finds that the petition is admissible under Articles 46(1)(c) and 47(d) of the Convention.
4.
Colorable Claim
57. The Petitioners have alleged that the State has violated Mr. Jacob's rights under Articles 4, 5, 8, and 24 of the Convention, and have provided factual allegations that tend to establish that the alleged violations may be well-founded. The Commission therefore concludes, without prejudging the merits of the case, that the Petitioners have presented colorable claims of violations of Mr. Jacob's rights and the petition is not rendered inadmissible under Articles 47(b) or 47(c) of the Convention.
5.
Conclusion on Admissibility
58. In accordance with the foregoing analysis of the requirements of the Convention and the applicable provisions of the Commission's Regulations, and without prejudging the merits of this petition, the Commission decides to declare the claims presented in Mr. Jacob's petition admissible, pursuant to Article 46 of the Convention.
B. The Merits of the Petition
1.
Standard of Review
59.
In response to the various standards that the parties have
suggested should guide the Commission in determining the issues before
it, the Commission wishes to clarify that it will undertake its review
of the merits of the Petitioners' claims in accordance with the
Commission's heightened scrutiny test. According to this standard of
review, the Commission will subject the parties' allegations to an
enhanced level of scrutiny in order to ensure that any deprivation of
life effected by a State Party pursuant to a death sentence complies
strictly with the provisions of the Convention, including in
particular Articles 4, 5, 7, and 8 of the Convention.
[38]
The heightened scrutiny test is, as the Commission has
previously recognized, consistent with the restrictive approach to the
death penalty provisions of human rights treaties taken by the
Commission and other international authorities.
[39]
The heightened
scrutiny test is also not precluded by the Commission's fourth
instance formula, according to which the Commission in principle will
not review the judgments issued by the domestic courts acting within
their competence and with due judicial guarantees, unless a petitioner’s
allegations entail a possible violation of any of the rights set forth
in the Convention.
[40]
The Commission will therefore apply the heightened
scrutiny standard in determining the complaint in the present case.
2.
Articles 4, 5, and 8 of the Convention - Mandatory Nature of
the Death Penalty
a.
Mr. Jacob has been sentenced to a mandatory death penalty
60. As detailed previously, the Petitioners allege: (i) violations of Articles 4, 5, 8, and 24 of the Convention, relating to the mandatory nature of the death penalty and the process for granting amnesty, pardon or commutation of sentence in Grenada; (ii) violations of Article 5 of the Convention pertaining to Mr. Jacob's conditions of detention; and (iii) violations of Article 8 of the Convention, relating to the unavailability of legal aid for Constitutional Motions in Grenada.
61.
As noted previously, the State has not responded to the
Commission’s communications of June 9, 1999, and September 25, 2000,
that the State deemed relevant pertaining to the exhaustion of
domestic remedies and the claims raised in Mr. Jacob's petition, nor
has the State responded to the Commission's communication regarding
the possibility of a friendly settlement in Mr. Jacob's case. As a
consequence, in determining the merits of the Petitioners' allegations
in relation to Mr. Jacob, the Commission will presume the facts as
reported in Mr. Jacob's petition to be true pursuant to Article 39 of
the Commission’s Rules of Procedures, provided that the evidence
does not lead to a different conclusion, in accordance with Article 39
of the Commission's Rules of Procedure.
62. Mr. Jacob was convicted of murder pursuant to Section 234 of the Criminal Code of Grenada, which provides that "[w]hoever commits murder shall be liable to suffer death and sentenced to death." [41] The crime of murder in Grenada can therefore be regarded as subject to a "mandatory death penalty," namely a death sentence that the law compels the sentencing authority to impose based solely upon the category of crime for which the defendant is found responsible. Once a defendant is found guilty of the crime of murder, the death penalty must be imposed. Accordingly, mitigating circumstances cannot be taken into account by a court in imposing the death sentence and therefore once the jury found Mr. Jacob guilty of capital murder, the death penalty was the only available punishment. The State has not denied the mandatory nature of Mr. Jacob's death sentence. In the case of Paul Lallion Case 11.765 which is also before this Commission, the State indicated the following in its Reply to the petition by confirming that the sentence of death is mandatory in Grenada and states the following:
In Grenada the sentence of death is the mandatory sentence for murder under Section 230 of the Criminal Code Cap. 1 which has not been amended in any respect material to the issue under consideration since its enactment. The manner of execution of sentence authorized by law is by hanging and the passing of the sentence also provides lawful authority for the detention of the condemned man in prison until such time as the sentence is executed. The continuing constitutional validity of the death sentence is put beyond all doubt by Section 2(1) which reads:
No
person shall be deprived of his life intentionally save in execution
of the sentence of a court in respect of a criminal offence under the
law of Grenada of which he has been convicted.
63.
Therefore, as the Commission has determined in previous cases,
[42]
that the crimes of capital murder in Grenada can be
regarded as being subject to a "mandatory death penalty",
namely a death sentence that the law compels the sentencing authority
to impose based solely upon the category of crime for which the
defendant is found responsible. Once a defendant is found guilty of
the crime of capital murder, the death penalty must be imposed.
Accordingly, mitigating circumstances cannot be taken into account by
a court in sentencing an individual to death once a conviction for
capital murder has been rendered.
64. As indicated in Part III of this Report, Mr. Jacob has alleged that the State violated his rights pursuant to Articles 4(1), 4(2), 4(6), 5(1), 5(2), 8 and 24 of the American Convention, because he was sentenced to a mandatory death penalty for the crime of murder. Mr. Jacob has also argued that the process for granting amnesty, pardon or commutation of sentence in Grenada does not provide an adequate opportunity for considering individual circumstances, and in itself violates Article 4(6) of the Convention.
b.
Mr. Jacob's mandatory death penalty, Articles 4, 5, and 8 of
the American Convention
65.
In previous cases
[43]
involving the application of capital punishment under the
Section 234 of the Criminal Code of Grenada, the Commission has
evaluated the mandatory nature of the death penalty under that
legislation in light of Article 4 (right to life),
[44]
Article 5 (right to humane treatment)
[45]
and Article 8 (right to a fair trial)
[46]
of the Convention and the principles underlying those
provisions. It has also considered the mandatory death penalty in
light of pertinent authorities in other international and domestic
jurisdictions, to the extent that those authorities may inform the
appropriate standards to be applied under the American Convention.
[47]
Based upon these considerations and analysis, the
Commission has reached the following conclusions.
66.
First, the Commission has found that the supervisory bodies of
international human rights instruments have subjected the death
penalty provisions of their governing instruments to a rule of
restrictive interpretation, to ensure that the law strictly controls and
limits the circumstances in which a person may be deprived of his life
by authorities of the state. This includes strict compliance with
standards of due process.
[48]
67.
In addition, the Commission has identified a general
recognition by domestic and international authorities that the death
penalty is a form of punishment that differs in substance as well as
in degree in comparison with other means of punishment. It is the
absolute form of punishment that results in the forfeiture of the most
valuable of rights, the right to life and, once implemented, is
irrevocable and irreparable. The Commission has accordingly determined
that the fact that the death penalty is an exceptional form of
punishment must also be considered in interpreting Article 4 of the
American Convention.
[49]
68.
Finally, the Commission has observed that under the express
terms of Article 4 of the Convention, certain circumstances of
individual offenses and individual defendants may bar the imposition
or application of the death penalty altogether, and as a consequence
must be taken into account in sentencing an individual to death.
[50]
69.
In the context of these interpretive rules and principles, the
Commission has also previously evaluated mandatory death penalty
legislation under Articles 4, 5 and 8 of the Convention, and has
concluded that imposing the death penalty through mandatory
sentencing, as Grenada and Jamaica have done in respect of crime of
capital murder, is not consistent with the terms of Articles 4(1),
5(1), 5(2), 8(1) and 8(2) of the Convention and the principles
underlying those Articles.
[51]
The Commission observes in this regard that a majority of
the UN Human Rights Committee recently reached a similar conclusion in
the context of Article 6(1) of the International Covenant on Civil and
Political Rights.
[52]
70. The Commission has determined that imposing the death penalty in a manner that conforms with Articles 4, 5 and 8 of the Convention requires an effective mechanism by which a defendant may present representations and evidence to the sentencing court as to whether the death penalty is a permissible or appropriate form of punishment in the circumstances of his case. In the Commission’s view, this includes, but is not limited to, representations and evidence as to whether any of the factors incorporated in Article 4 of the Convention may prohibit the imposition of the death penalty. [53]
71.
In reaching this conclusion, the Commission has identified a
principle common to those democratic jurisdictions that have retained
the death penalty, according to which the death penalty should only be
implemented through "individualized" sentencing.
[54]
Through this mechanism, the defendant is entitled to
present submissions and evidence in respect of all potentially
mitigating circumstances relating to his or her person or offense, and
the court imposing sentence is afforded discretion to consider these
factors in determining whether the death penalty is a permissible or
appropriate punishment. Mitigating factors may relate to the gravity
of the particular offense or the degree of culpability of the
particular offender, and may include such factors as the offender’s
character and record, subjective factors that might have motivated his
or her conduct, the design and manner of execution of the particular
offense, and the possibility of reform and social readaptation of the
offender.
72.
Applying these findings in the context of the case presently
before it, the Commission has confirmed that Mr. Jacob has been
convicted of capital murder pursuant to Section 234 of the Criminal
Code of Grenada and that no provisions in the code have been
identified that permit a judge or jury to consider the personal
circumstances of an offender or his or her offense, such as the
offender’s record or character, the subjective factors that may have
motivated his or her conduct, or the offender’s likelihood of reform
or social readaptation, in determining whether the death penalty is an
appropriate penalty for a particular offender in the circumstances of
the offender’s case.
73.
In Mr. Jacob's case, the Trial Judge could not consider the
mitigating factors present nor the character and personal
circumstances of Mr. Jacob. The Trial Court could not take into
account the evidence of Dr. Olubahkle Obikaya, a consultant
psychiatrist who testified as to Mr. Jacob's state of mind on the date
of the crime. Dr. Obikaya testified that Mr. Jacob was labouring under
an intense and unpleasant belief that the deceased (whom he had
previously had a personal relationship with prior to the commission of
the crime) with the help of someone else had "cast a spell on him
and actually believed that some harm or danger was going to come to
him." Dr. Obikaya further testified that Mr. Jacob informed him
that the relationship with the deceased continued, secretly, because
the deceased's mother did not like the relationship. Dr. Obikaya also
testified that Mr. Jacob related to him that on April 23, 1995, the
date of the deceased's death, he and the deceased were having a
friendly chat and that the last thing he remembered was the deceased
saying, "Dennis, you going to die."
[55]
74.
In addition, Dr. Obikaya testified that at that point something
clicked in Mr. Jacob's mental state, possibly and abnormal electrical
brain discharge and that it was possible that Mr. Jacob could have
been in that fused state that morning. Dr. Obikaya testified
that the fused state is actually a "state in which an
individual affirms a series of actions which he is totally unaware of,
for which he is unable to account for afterwards," and that
someone in that state could not know whether their action is right or
wrong. The Petitioners maintain that Dr. Obikaya testified on
cross-examination that it was possible that Mr. Jacob was in a fused
state on the morning of April 23, 1995, and in answer from the Jury,
Dr. Obikaya stated that he was convinced that Mr. Jacob was telling
the truth.
[56]
Upon satisfying the elements of Section 234 of the Code,
Mr. Jacob was convicted of murder. The Trial Court had no discretion
in passing sentence on him because death is the automatic penalty
under the law of Grenada.
75.
Consequently, the Commission concludes that once Mr. Jacob was
found guilty of capital murder, the law in Grenada did not permit a
hearing by the courts as to whether the death penalty was a
permissible or appropriate penalty. There was no opportunity for the
trial judge or the jury to consider such factors as Mr. Jacob's
character or record, the nature or gravity of his crime, or the
subjective factors that may have motivated his conduct, in determining
whether the death penalty was an appropriate punishment. Mr. Jacob was
likewise precluded from making representations on these matters, as a
consequence of which there is no information on the record as to
potential mitigating factors that might have been presented to the
trial court. The court sentenced Mr. Jacob based solely upon the
category of crime for which he was convicted.
76.
In this context, and in light of the Commission's prior
analysis of mandatory death penalties under the Convention, the
Commission concludes that the State violated Mr. Jacob's rights under
Articles 4(1), 5(1), 5(2), and 8(1) of the Convention, in conjunction
with violations of Articles 1(1) and 2 of the Convention, by
sentencing him to a mandatory death penalty.
77.
With respect to Article 4(1) of the Convention, the Commission
concludes that the trial court was compelled under the State’s
legislation to impose a death sentence upon Mr. Jacob with no
discretion to consider his personal characteristics and the particular
circumstances of his offense to determine whether death was an
appropriate punishment. Mr. Jacob was not provided with an opportunity
to present representations and evidence as to whether the death
penalty was an appropriate punishment in the circumstances of his
case. Rather, the death penalty was automatically imposed on Mr. Jacob
without principled distinction or rationalization as to whether it was
an appropriate form of punishment in the particular circumstances of
his case. Moreover, the propriety of the sentence imposed was not
susceptible to any effective form of judicial review, and Mr. Jacob's
execution and death at the hands of the State is imminent, his
conviction having been upheld on appeal to the highest court in
Grenada. The Commission therefore concludes that the State has by this
conduct violated Mr. Jacob's rights under Article 4(1) of the
Convention not to be arbitrarily deprived of life and therefore, Mr.
Jacob's death sentence is unlawful.
[57]
78.
The Commission further concludes that the State, by sentencing
Mr. Jacob to a mandatory death penalty absent consideration of his
individual circumstances, has failed to respect Mr. Jacob's rights to have his physical,
mental and moral integrity respected contrary to Article 5(1) of the
Convention, and has subjected him to cruel, inhuman, or degrading
punishment or treatment in violation of Article 5(2). The State
sentenced Mr. Jacob to death solely because he was convicted of a
predetermined category of crime. Accordingly, the process to which Mr.
Jacob has been subjected would deprive him of his most fundamental
rights, his right to life, without considering the personal
circumstances and the particular circumstances of his offense. Not
only does this treatment fail to recognize and respect Mr. Jacob's
integrity as an individual human being, but in all of the
circumstances has subjected him to treatment of an inhuman or
degrading nature. Consequently, the State has violated Article 5(1)
and 5(2) of the Convention in respect of Mr. Jacob.
[58]
79.
Finally, the Commission concludes that the State has violated
Article 8(1) of the Convention, when read in conjunction with the
requirements of Article 4 of the Convention, by subjecting Mr. Jacob
to a mandatory death sentence. By denying Mr. Jacob an opportunity to
make representations and present evidence to the trial judge as to
whether his crime permitted or warranted the ultimate penalty of
death, under the terms of Article 4 of the Convention or otherwise,
the State also denied Mr. Jacob of his right to fully answer and
defend the criminal accusations against him, contrary to Article 8(1)
of the Convention.
[59]
80.
It follows from the Commission’s findings that, should the
State execute Mr. Jacob pursuant to his death sentence, this would
constitute further egregious and irreparable violations of Articles 4
and 5 of the Convention.
3. Article 4(6) of the Convention
and the Prerogative of Mercy in Grenada
81.
Article 4(6) of the Convention provides that "[e]very
person condemned to death shall have the right to apply for amnesty,
pardon, or commutation of sentence, which may be granted in all cases.
Capital punishment shall not be imposed while such a petition is
pending decision by the competent authority." 82. The Petitioners in the present case have also contended that the process for granting amnesty, pardon or commutation of sentence in Grenada is not consistent with Article 4(6) of the Convention because it does not provide for certain procedural rights which the Petitioners assert are integral to render this right effective. In this connection, the authority of the Executive in Grenada to exercise its Prerogative of Mercy is prescribed in
Sections 72, 73 and 74 of the Constitution of Grenada, which provide
as follows:
72(1)
The Governor-General may, in Her Majesty’s name and on Her Majesty’s
behalf.- (a) grant a pardon, either free or subject to lawful conditions, to any
person convicted of any offence; (b) grant to any person a respite, either indefinite or for a specified
period, of the execution of any punishment
imposed on that person for any offence; (c) substitute a less severe form of punishment for any punishment
imposed on a person for any offence; or (d) remit the whole or any part of any punishment imposed on any person
for any offence or of any penalty or forfeiture otherwise due to the
Crown on account of any offence. (2)
The powers of the Governor-General under subsection (1) of this
section shall be exercised by him in accordance with the advice of
such Minister as may for the time being be designated by the
Governor-General, acting in accordance with the advice of the Prime
Minister. 73
(1) There shall be an Advisory Committee on the Prerogative of Mercy
which shall consist of –
(a)
the Minister for the time
being designated under Section 72(2) of this Constitution who shall be
the Chairman;
(b)
the Attorney General;
(c)
the chief medical officer of
the Government of Grenada; and
(d)
three other members appointed
by the Governor-General, by instrument in writing under his hand. (2)
A member of the Committee appointed under subsection (1)(d) of
this section shall hold his seat thereon for such period as may be
specified in the instrument by which he was appointed: Provided
that his seat shall become vacant – (a) in the case of a person who, at the date of his appointment was a
Minister, if he ceases to be a Minister; or (b) if the Governor-General by instrument in writing under his hand, so
directs.
(3)
The Committee may act
notwithstanding any vacancy in its membership or absence of any member
and its proceedings shall not to be invalidated by the presence or
participation of any person not entitled to be present at or to
participate in those proceedings.
(4)
The Committee may regulate
its own procedure.
(5)
In the exercise of his
functions under this section, the Governor-General shall act in
accordance with the advice of the Prime Minister.
74(1)
Where any person has been sentenced to death (otherwise than by a
court-martial) for an offence, the Minister for the time being
designated under section 72(2) of this Constitution shall cause a
written report of the case from the trial judge (or, if a report
cannot be obtained from the judge, a report on the case from the Chief
Justice), together with such other information derived from the record
of the case or elsewhere as he may require, to be taken into
consideration at a meeting of the Advisory Committee on the
Prerogative of Mercy; and after obtaining the advice of the Committee
he shall decide in his own deliberate judgment whether to advise the
Governor-General to exercise any of his powers under section 72(1) of
this Constitution. (2)
The Minister for the time being designated under section 72(2) of this
Constitution may consult with the Advisory Committee on the
Prerogative of Mercy before tendering advice to the Governor-General
under section 72(1) of this Constitution in any case not falling
within subsection (1) of this section but he shall not be obliged to
act in accordance with the recommendation of the Committee.
83.
In addressing this issue, the Commission first observes that in
the cases of Rudolph Baptiste and Donnason Knights from Grenada,
the Commission determined that the process for exercising the
Prerogative of Mercy under Sections 72, 73, and 74 of the Grenadian
Constitution did not guarantee the condemned prisoners in those cases
an effective or adequate opportunity to participate in the mercy
process, as required under Article 4(6) of the Convention.
[60]
84.
In reaching this conclusion, the Commission interpreted the
right to apply for amnesty, pardon or commutation of sentence under
Article 4(6), when read together with the State's obligations under
Article 1(1) of the Convention, as encompassing certain minimum
procedural guarantees for condemned prisoners, in order for the right
to be effectively respected and enjoyed. These protections were held
to include the right on the part of condemned prisoners to submit a
request for amnesty, pardon or commutation of sentence, to be informed
of when the competent authority will consider the offender's case, to
make representations, in person or by counsel, to the competent
authority, and to receive a decision from that authority within a
reasonable period of time prior to his or her execution.
[61]
It was also held to entail the right not to have capital
punishment imposed while such a petition is pending decision by the
competent authority.
[62]
85.
In making this determination in the cases of Rudolph
Baptise, Donnason Knights, and McKenzie et al., the
information before the Commission indicated that neither the
legislation nor the courts in Grenada and in Jamaica guaranteed the
prisoners in those cases any procedural protection in relation to the
exercise of the Prerogative of Mercy. Rather, the petitioners and the
State in those cases indicated that according to domestic
jurisprudence at that time, the exercise of the power of pardon in
Jamaica involved an act of mercy that was not the subject of legal
rights and therefore is not subject to judicial review, and cited in
support the decision of the Judicial Committee of the Privy Council in
the Reckley Case, supra.
86.
Since adopting its report in the cases of Rudolph Baptise
and Donnason Knights and McKenzie et al., the Commission
has received information that in a September 12, 2000, judgment in the
case of Neville Lewis et al. v. The Attorney General of Jamaica,
the Judicial Committee of the Privy Council found that an individual's
petition for mercy under the Jamaican Constitution is open to judicial
review.
[63]
The Judicial Committee of the Privy Council also found
that the procedure for mercy must be exercised by procedures that are
fair and proper, which require, for example, that a condemned
individual be given sufficient notice of the date on which the
Jamaican Privy Council will consider his or her case, to be afforded
an opportunity to make representations in support of his or her case,
and to receive copies of the documents that will be considered by the
Jamaican Privy Council in making its decision.
[64]
87.
Notwithstanding the determination in the Neville Lewis Case,
however, there is no information in the present case indicating that
the State has extended the legal requirements articulated in that
decision to Mr. Jacob. Accordingly, based upon the information
available, the Commission finds that the procedure available to Mr.
Jacob to seek amnesty, pardon or commutation of sentence has not
guaranteed him an effective or adequate opportunity to participate in
the mercy process.
88.
The Commission also concludes that the State has violated Mr.
Jacob's rights pursuant to Article 4(6) of the American Convention by
failing to guarantee him an effective right to apply for amnesty,
pardon or commutation of sentence, to make representations, in person
or by counsel, to the Advisory Committee on the Prerogative of Mercy,
and to receive a decision from the Advisory Committee within a
reasonable time prior to his execution.
89. Given its foregoing conclusions as to the legality of Mr. Jacob's death sentence under Articles 4, 5 and 8 of the Convention, the Commission does not consider it necessary to determine whether sentencing Mr. Jacob to a mandatory death penalty violated his rights to equal protection of the law contrary to Article 24 of the Convention.
continued...
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[32]
Golder v. UK
(1975) Series A Nº. 18.
[33]
Airey v.
Ireland (1979) Series A Nº. 32.
[34]
Article 6(3) of
the European Convention provides: "Everyone charged with a
criminal offence has the following minimum rights: (c) to defend
himself in person or through legal assistance of his own choosing
or, if he has not sufficient means to pay for legal assistance, to
be given it free when the interests of justice so require."
[35]
Donnason
Knights, (Grenada) Report Nº 47/01, Annual Report of the
Inter-American Commission on Human Rights 2000, Volume II, at 841
OEA/Ser.L/V/II. 111, Doc. 20 rev., 16 April 2001; and the following
cases can be found in Annual Report of the Inter-American Commission
on Human Rights 1999, Volume I, OEA/Ser.L/VII.106, Doc. 3 rev.,
April 13, 2000 - Paul Lallion (Grenada) Report Nº 124/99,
Case 11.765 at; Rudolph Baptiste, Report Nº. 38/00, Case
11.743 (Grenada);Michael Edwards, Report Nº. 24/00, Case
Nº. 12.067 (The Bahamas), at 177, Omar Hall, Report Nº.
25/00, Case 12.068, at 184 (The Bahamas); Brian Schroeter and
Jeronimo Bowleg, at 190, (The Bahamas). 36
See I/A Court H.R., Neira
Alegria Case, Preliminary Objections, Judgment, December 11,
1991 pp. 44-45, at paras. 25-31. 37
Donnason Knights, (Grenada) Report Nº 47/01, Annual Report
of the Inter-American Commission on Human Rights 2000, Volume II, at
841 OEA/Ser.L/V/II. 111, Doc. 20 rev., 16 April 2001; and the
following cases can be found in Annual Report of the Inter-American
Commission on Human Rights 1999, Volume I, OEA/Ser.L/VII.106, Doc. 3
rev., April 13, 2000 - Paul Lallion (Grenada) Report Nº
124/99, Case 11.765 at; Rudolph Baptiste, Report Nº. 38/00,
Case 11.743 (Grenada); Michael E.dwards, Report Nº 24/00,
Case 12.067 (The Bahamas), at 177, Omar Hall Report Nº
25/00, Case 12.068, at 184 (The Bahamas); Brian Schroeter and
Jeronimo Bowleg, at 190, (The Bahamas).
[38]
Donnason
Knights, (Grenada) Report Nº 47/01, Annual Report of the
Inter-American Commission on Human Rights 2000, Volume II, at 841
OEA/Ser.L/V/II. 111, Doc. 20 rev., 16 April 2001; and the following
cases can be found in Annual Report of the Inter-American Commission
on Human Rights 2000, Volume I, OEA/Ser.L/VII.111, Doc. 3 rev.,
April 16, 2000 - Rudolph Baptiste, Report Nº 38/00, Case .
11.743 (Grenada) Annual
Report Of The Iachr 1999, p. 721, at p. 738; Report Nº
48/01, Michael Edwards, Case 12.067 (The Bahamas) at 620, Omar
Hall, Case 12.068, at 620 (The Bahamas), Brian Schroeter
and Jeronimo Bowleg, at 620 (The Bahamas); McKenzie et al.
(Jamaica), Report Nº 41/00, Annual
Report Of The IACHR 1999, P. 918, At P. 967. [39] See e.g Rudolph Baptiste, Donnason Knights, Mckenzie et al. Case, supra, para. 169. 40
See Santiago Marzioni
v. Argentina, Report Nº. 39/96, Annual
Report of the IACHR 1996, p. 76, paras. 48-52. See also Clifton
Wright v. Jamaica, Case 9260
, Annual Report of the IACHR
1987-88, p. 154. 41
Section 234 of the Criminal
Code, Title XVIII, Cap. 76 , p. 790, contains a proviso to the
death penalty for a crime of murder.
The proviso states: Provided
that the sentence of death shall not be pronounced or recorded
against a person convicted of murder if it appears to the Court that
at the time when the offence was committed he was under the age of
eighteen years; but, in lieu of such punishment, the Court shall
sentence the juvenile offender to be detained during Her Majesty’s
pleasure, and, if so sentenced, he shall, notwithstanding anything
in the other provisions of any other Law or Ordinance, be liable to
be detained in such place and under such conditions as the Governor
may direct, and whilst so detained shall be deemed to be in legal
custody. 42
Donnason Knights, (Grenada) Report Nº. 47/01, Annual Report
of the Inter-American Commission on Human Rights 2000, Volume II, at
841 OEA/Ser.L/V/II. 111, Doc. 20 rev., 16 April 2001; and the
following cases can be found in Annual Report of the Inter-American
Commission on Human Rights 2000, Volume I, OEA/Ser.L/VII.111, Doc. 3
rev., April 16, 2000 - Rudolph Baptiste, Report No. 38/00,
Case No. 11.743 (Grenada)
Annual Report Of The Iachr 1999, p. 721, at p. 738 ; Report
Nº. 48/01, Michael Edwards, Case Nº. 12.067 (The Bahamas)
at 620; Omar Hall, Case 12.068, at 620 (The Bahamas)
Brian Schroeter and Jeronimo Bowleg, at 620 (The Bahamas). McKenzie
et al.
(Jamaica), Report
No. 41/00, Annual Report Of
The IACHR 1999, P. 918, at p. 967, para 178. 43
Donnason Knights, (Grenada) Report Nº 47/01, Annual Report
of the Inter-American Commission on Human Rights 2000, April 16,
2001- Rudolph Baptiste, Report Nº 38/00, Case 11.743
(Grenada) Annual Report of
the IACHR 1999, p. 721, at p. 738. 44
Article 4 of the American Convention provides as follows: Article
4. Right to Life 1.
Every person has the right to have his life respected. This
right shall be protected by law and, in general, from the moment of
conception. No one shall be arbitrarily deprived of his life. 2.
In countries that have not abolished the death penalty, it
may be imposed only for the most serious crimes and pursuant to a
final judgment rendered by a competent court and in accordance with
a law establishing such punishment, enacted prior to the commission
of the crime. The application of such punishment shall not be
extended to crimes to which it does not presently apply. 3.
The death penalty shall not be reestablished in states that
have abolished it. 4.
In no case shall capital punishment be inflicted for
political offenses or related common crimes. 5.
Capital punishment shall not be imposed upon persons who, at
the time the crime was committed, were under 18 years of age or over
70 years of age; nor shall it be applied to pregnant women. 6.
Every person condemned to death shall have the right to apply
for amnesty, pardon, or commutation of sentence, which may be
granted in all cases. Capital punishment shall not be imposed while
such a petition is pending decision by the competent authority. 45
Article 5 of the Convention provides as follows: Article
5 – Right to Humane Treatment 1.
Every person has the right to have his physical, mental, and
moral integrity respected. 2.
No one shall be subjected to torture or to cruel, inhuman, or
degrading punishment or treatment. All persons deprived of their
liberty shall be treated with respect for the inherent dignity of
the human person. 3.
Punishment shall not be extended to any person other than the
criminal. 4.
Accused persons shall, save in exceptional circumstances, be
segregated from convicted persons, and shall be subject to separate
treatment appropriate to their status as unconvicted persons. 5.
Minors while subject to criminal proceedings shall be
separated from adults and brought before specialized tribunals, as
speedily as possible, so that they may be treated in accordance with
their status as minors. 6.
Punishments consisting of deprivation of liberty shall have
as an essential aim the reform and social readaptation of the
prisoners. 46
Article 8(1) of the
Convention provides: “Every person has the right to a hearing,
with due guarantees and within a reasonable time, by a competent,
independent, and impartial tribunal, previously established by law,
in the substantiation of any accusation of a criminal nature made
against him or for the determination of his rights and obligations
of a civil, labor, fiscal, or any other nature." 47
See e.g. Convention, Article 29 (providing, inter alia, that no provision of the Convention may be interpreted
as restricting the enjoyment or exercise of any right or freedom
recognized by virtue of the laws of any State Party or by virtue of
another Convention to which one of the said states is a party, or to
exclude or limit the effect that the American Declaration of the
Rights and Duties of Man and other international acts of the same
nature may have). 48
Donnason Knights, supra
at 875-882, Rudolph Baptiste, supra
at 740-763; and McKenzie et al. Case, supra,
para. 186-187, citing I/A Court H.R., Advisory Opinion OC-3/83 of
September 8, 1983, Restrictions to the Death Penalty (Arts. 4(2) and
4(4) of the American Convention on Human Rights), Annual
Report 1984, p. 31, para.
52 (finding that the text of Article 4 of the Convention as a whole
reveals a clear tendency to restrict the scope of the death penalty
both as far as its imposition and its application are concerned); Anthony
McLeod v. Jamaica, Communication Nº. 734/1997, U.N.Doc
CCPR/C/62/734/1997. See similarly Baptiste Case, supra,
paras. 74-75. 49
Donnason Knights, supra
at 875-882, Rudolph Baptiste, supra at 740-763; McKenzie et al.
Case, supra, para. 188,
citing, inter alia, Woodson v. North Carolina 49 L Ed 2d 944,
961 (finding that "the penalty of death is qualitatively
different from a sentence of imprisonment, however long. Death, in
its finality, differs more from life imprisonment than a 100-year
prison term differs from one of only a year or two. Because of that
qualitative difference, there is a corresponding difference in the
need for reliability in the determination that death is the
appropriate punishment in a specific case"). 50
Id, para.
189, citing Advisory Opinion OC-3/83, supra, para. 55 (observing with
regard to Article 4 of the Convention that "three types of
limitations can be seen to be applicable to States Parties which
have not abolished the death penalty. First, the imposition or
application of this sanction is subject to certain procedural
requirements whose compliance must be strictly observed and
reviewed. Second, the application of the death penalty must be
limited to the most serious common crimes not related to political
offenses. Finally, certain considerations involving the person of
the defendant, which may bar the imposition or application of the
death penalty, must be taken into account."). 52
UNHRC, Eversley Thompson v. St. Vincent and the Grenadines,
Communication Nº 806/1998 (October 18, 2000). 53
Donnason Knights, supra at 875-882, Rudolph Baptiste, supra
at 740-763; and McKenzie et al. Case,
supra, para. 207. 54
McKenzie et al. Case,
supra, paras.
208, 212-219, citing Woodson v. North Carolina 49 L Ed 2d 944
(U.S.S.C.); The State v. Makwanyane and McHunu, Judgment,
Case Nº. CCT/3/94 (6 June 1995) (Constitutional Court of the
Republic of South Africa); Bachan Singh v. State of
Punjab (1980) 2 S.C.C. 475 (Supreme Court of India). See also
Baptiste Case, supra. 60
Rudolph Baptiste supra,
760-76; Donnason Knights, supra 878-882; and McKenzie
et al. Case, supra,
paras. 227-232. 62
Id. The
Commission reasoned that the right to apply for amnesty, pardon or
commutation of sentence under Article 4(6) of the Convention may be
regarded as similar to the right under Article XXVII of the American
Declaration of every person "to seek and receive" asylum
in foreign territory, in accordance with the laws of each country
and with international agreements, which the Commission has
interpreted, in conjunction with the 1951 Convention Relating to the
Status of Refugees and the 1967 Protocol Relating to the Status of
Refugees, as giving rise to a right under international law of a
person seeking refuge to a hearing in order to determine whether
that person qualifies for refugee status. See Haitian Center for
Human Rights and others v. United States, Case Nº 10.675 (13
Match 1997), Annual Report of the IACHR 1996, para. 155. The
Commission also observed that some common law jurisdictions
retaining the death penalty have prescribed procedures through which
condemned prisoners can engage and participate in the amnesty,
pardon or commutation process See
Ohio Constitution, Art. III, s. 2, Ohio Revised Code Ann., s.
2967.07 (1993). See also Ohio Adult Parole Authority
v. Woodward, Court File Nº. 96-1769 (25 March 1998) (U.S.S.C.). |